Bill Acceptance and Discount & Bank Guarantee Facility Agreement

103 Pages·2012·0.3 MB·English

National Australia Bank Limited

Reading Entertainment Australia Group

Bill Acceptance and Discount & Bank Guarantee
Facility Agreement
Contents

1 Interpretation 1
1.1 Definitions 1
1.2 Construction 19
1.3 Headings 20
1.4 Corporations Act, GST and Accounting Standards 20
1.5 Subsisting Events of Default and Potential Events of Default 20
1.6 Terms relating to Bills 20
1.7 Inconsistency 20
2 Consideration 21
3 Conditions precedent 21
3.1 Initial conditions precedent 21
3.2 Conditions precedent to Drawings 21
3.3 Satisfaction of conditions precedent 21
3.4 Conditions subsequent 22
4 Facility 22
4.1 Nature 22
4.2 Purpose 22
4.3 Drawings 22
4.4 Funding Notices 23
4.5 Funding Periods 24
4.6 Drawing and acceptance of Bills 24
4.7 Discounting of Bills 24
4.8 Bank Guarantee Facilities 25
4.9 Cancellation 25
4.10 Market disruption 25
4.11 Alternative basis of interest or funding 26
4.12 Pricing Review Events 26
4.13 Consequences of a Pricing Review 26
5 Payments 27
5.1 Bills 27
5.2 Voluntary prepayments 27
5.3 Indemnity in respect of Bank Guarantees 27
5.4 Mandatory prepayments 28
5.5 Repayment 29
6 Interest and fees 30
6.1 Payment and rate 30
6.2 Computation of interest 30
6.3 Capitalisation of interest 30
6.4 Merger 31
7 Payments 31
7.1 Place, manner and time of payment 31
7.2 Gross-up 31
7.3 Appropriation 32
8 Representations and warranties 32
8.1 Nature 32
8.2 General 35
9 General obligations 36
9.1 Fees 36
9.2 Records 37
9.3 Financial Statements and other financial information 37
9.4 Other information 38
9.5 Other financial undertakings 39
9.6 Insurance 42
9.7 Financial ratios 42
9.8 Environment 44
9.9 No default 46
9.10 Obligations of Trustees 46
10 Events of Default 47
10.1 Nature 47
10.2 Effect of Event of Default 50
10.3 Cash Cover Account regarding Bank Guarantees 52
10.4 Review Events 52
10.5 Reviews 52
11 Costs and expenses 53
11.1 Interpretation 53
11.2 Nature 53
11.3 Remuneration 54
12 Indemnities 54
12.1 Nature 54
12.2 Representatives 54
12.3 Currency deficiency 54
12.4 Independence and survival 55
12.5 Accounting for transactions 55
12.6 Liability for Regulatory Events 55
13 Goods and Services Tax 56
13.1 Taxable supply 56
13.2 Adjustment events 56
13.3 Payments 56
14 Increased costs 57
15 Illegality 57
15.1 Prepayment 57
15.2 Facility terminated 58
16 Guarantee and indemnity 58
16.1 Guarantee 58
16.2 Nature of guarantee 58
16.3 Indemnity 58
16.4 Reinstatement of rights 59
16.5 Rights of the Bank are protected 59
16.6 No merger 60
16.7 Extent of Guarantor’s obligations 60
16.8 Guarantor’s rights are suspended 60
16.9 Guarantor’s right of proof limited 60
16.10 No set-off against assignees 61
16.11 Suspense account 61
16.12 Right to prove 61
16.13 Release of Guarantors 61
16.14 New Guarantors 62
16.15 Consideration 62
16.16 New Guarantors 62
17 Attorney 62
17.1 Appointment 62
17.2 General 63
18 General 63
18.1 Set-off 63
18.2 Bank’s certificate 63
18.3 Supervening legislation 63
18.4 Time of the essence 64
18.5 Business Days 64
18.6 Confidentiality 64
18.7 Exchange rate 66
18.8 Records as evidence 66
18.9 Further assurances 66
18.10 Amendment 66
18.11 Waiver and exercise of rights 66
18.12 Rights cumulative 67
18.13 Approval and consent 67
18.14 Assignment 67
18.15 Counterparts 68
18.16 Sovereign immunity 68
18.17 Governing law and jurisdiction 68
18.18 Telephone recording 68
18.19 Legal advice 68
18.20 Giving effect to the Transaction Documents 69
19 Notices 69
19.1 General 69
19.2 How to give a communication 69
19.3 Particulars for delivery of notices 70
19.4 Communications by post 70
19.5 Communications by fax 70
19.6 After hours communications 70
19.7 Process service 70
Schedule 1 – Transaction Parties 71
Schedule 2 – Facilities 73
Schedule 3 – Collateral Security 74
Schedule 4 – Bill Facility Limit 76
Schedule 5 – Conditions Precedent 77
Schedule 6 – Verification Certificate 81
Schedule 7 – Funding Notice 84
Schedule 8 – Guarantor Accession Deed 85
Schedule 9 – Compliance Certificate 87
Schedule 10 – Interim Compliance Certificate 89
Date 24 June 2011

Parties

National Australia Bank Limited ABN 12 004 044 937 of Pier 3 Level 4, 800 Bourke Street, Docklands, Victoria 3008 (Bank)

Reading Entertainment Australia Pty Ltd ACN 070 893 908 of 98 York Street, South Melbourne, Victoria 3205 (Borrower)

Each person listed in schedule 1 (each an Original Guarantor)

Agreed terms

1 Interpretation

1.1 Definitions

In this document:

Accounting Standards means accounting principles and practices consistently applied which are generally accepted in Australia and are consistent with any
applicable legislation in each case as in effect on the date of this document, including instruments in force under section 334 of the Corporations Act and
provisions of such instruments.

Adjusted EBITDA means, for any period, EBITDA adjusted to exclude:

(a) any impairment for non-current assets included in the consolidated financial statements of the Reading Entertainment Australia Group for the Financial Year
ending 31 December 2010, as applicable to the relevant period;

(b) any amounts from litigation settlements included in the consolidated financial statements of the Reading Entertainment Australia Group, for the Financial
Year ending 31 December 2010, as applicable to the relevant period; and

(c) any net foreign exchange amounts (whether realised or unrealised) included in the consolidated financial statements of the Reading Entertainment Australia
Group during the relevant period.

Aggregate Amount means, in relation to a Drawing, the aggregate of

(a) the Face Values of all Bills; or

(b) the Face Values of all Bank Guarantees;

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comprising that Drawing.

Annual Compliance Certificate means, in relation to a Financial Year, a certificate substantially in the form of schedule 9.

Approved Valuer means a company or firm of duly qualified and licensed real estate valuers acceptable to the Bank in all respects and instructed by (or with the
approval of) the Bank.

Attorney means any attorney appointed under this document and any sub-attorney appointed by an Attorney.

Authorisation includes any authorisation, consent, licence, permission, approval or exemption from any Government Body. If a Government Body could prohibit
anything being done in connection with any matter or otherwise intervene within a specified time after notice has been given to it or any document lodged or filed
with it in connection with the matter, the relevant matter will not be taken to have been Authorised until the specified time limit has expired without the Government
Body taking any relevant action.

Authorised Representative means, in relation to any party to this document, a person with the right to act as the agent of that party for the purposes of this
document. It includes a director or company secretary of that party (if it is a corporation) and, in the case of the Bank, an employee of the Bank whose title contains
the word “manager”, “director”, “associate” or a similar term and a lawyer for the Bank. It also includes a person appointed by a party as an Authorised
Representative of that party whose appointment is notified by the appointor to the other party in a notice which contains the specimen signature of the appointee.

Availability Period means in respect of each Bill Facility, the period beginning on the date on which the conditions precedent are satisfied or waived by the Bank in
accordance with the Transaction Documents and ending on the Termination Date.

Available Commitment means in respect of a Facility, the Facility Limit less the Outstanding Accommodation relating to that Facility.

Bank Bill Discount Facility means the Facility described as such in schedule 2 and granted pursuant to clause 4.1(a)(i).

Bank Facility Fee means the amounts payable in accordance with clause 9.1(b).

Bank Guarantee means each bank guarantee issued (or deemed to have been issued) in accordance with this document.

Bank Guarantee Facility means the Facility described as such in schedule 2 and granted pursuant to clause 4.1(a)(iii).

Bank Guarantee Margin means in respect of each Bank Guarantee:

(a) from the date this document is signed until adjusted in accordance with paragraph (b), 2.90% per annum;

(b) a margin adjusted on the last day of each six month period following the Funding Date for that Bank Guarantee by reference to the table below, and based on
the most recently determined Leverage Ratio (being a Leverage Ratio that has been calculated by reference to the Financial Statements and information set
out in the most recently received Annual Compliance Certificate or Interim Compliance Certificate):

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Funding Date for that Bank Guarantee by reference to the table below, and based on the most recently determined Leverage Ration (being a Leverage Ratio that has been
calculated by reference to the financial Statements and information set out in the most recently received Annual Compliance Certificate or Interim Compliance Certificate):

Leverage Ratio Bank Guarantee Margin
Greater than 3.50 times 2.90% per annum
Greater than 3.00 times and equal to or less than 3.50 times 2.65% per annum
Greater than 2.50 times and equal to or less than 3.00 times 2.40% per annum
Less than or equal to 2.50 times 2.15% per annum

Bank Guarantee Reserve Account means the account established pursuant to clause 9.5(n).

Beneficiary means in relation to a Bank Guarantee, the person who from time to time is entitled to make a claim for payment under that Bank Guarantee against the
Bank.

Bill means a bill of exchange as defined in the Bills of Exchange Act 1909 (but does not include a cheque). It includes a document which, when signed by the
persons named as drawer and acceptor in the relevant document, will become such a bill of exchange.

Bill Facility means each of:

(a) the Bank Bill Discount Facility; and

(b) the Revolving Bank Bill Discount Facility.

Break Costs means, in relation to any financial accommodation provided or to be provided by the Bank under a Facility, any liability or costs incurred by the Bank
by reason of:

(a) liquidating or re-deploying deposits or other funds acquired or contracted for by or on account of the Borrower or the Bank;

(b) terminating or reversing any agreement or arrangement (including by entering into new agreements or arrangements to close out or net off existing
agreements or arrangements) entered into by or on account of the Borrower or the Bank with a counterparty or an internal department of the Bank
responsible for such agreements or arrangements to hedge, fix, swap or limit its effective cost of funding; or

(c) any loss of any margins in relation to future lending or loss of any fees.

Burwood Property means:

(a) the land and improvements known as 78 Middleborough Road, Old Burwood Road, Burwood, Victoria; and

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(b) all present or future agreements, documents or rights relating to the ownership, occupation, use, sale, transfer or disposal of all or any part of the land and
improvements described in paragraph (a).

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Melbourne.

Cash Cover Rate means the rate (expressed as a rate per centum per annum) determined by the Bank (in good faith) to be the interest rate which it would pay on
deposits at call for an amount similar to the amount at which the relevant deposit is made.

Calculation Date means 31 March, 30 June, 30 September and 31 December in each year.

Calculation Period means each period of twelve months ending on a Calculation Date.

Change of Control means there is a change (from that prevailing at the date of this document) in the persons who control any of the following in respect of a
Transaction Party:

(a) more than 50% of the votes eligible to be cast in the election of directors or any similar matter; or

(b) the right to appoint or remove directors (or members of a governing body having functions similar to a board of directors) representing more than 50% of the
votes exercisable by the directors (or persons have similar functions); or

(c) an interest of more than 50% in any category of the profits, distributions or net liquidation proceeds.

Collateral Security means:

(a) any Guarantee by which any person Guarantees the Borrower’s compliance with its obligations under any of the Transaction Documents;

(b) any Security which secures the payment of money owing (actually or contingently) from time to time by:

(i) any Transaction Party in relation to any of the Transaction Documents; or

(ii) any person in relation to a Guarantee of any Transaction Party’s compliance with its obligations under any of the Transaction Documents; and

(c) without limiting the generality of paragraphs (a) and (b) each thing listed in schedule 3.

Contaminant means a noxious, harmful or hazardous condition (including an odour, temperature, sound, vibration or radiation) or substance the presence or use of
which (having regard, without limitation, to the nature and quantity of the substance and other substances with which it is stored or used) does or may result in the
breach of an Environmental Law or the issuing of an order or direction under an Environmental Law.

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Corporations Act means the Corporations Act 2001 (Cth).

Current Bank Guarantee means a Bank Guarantee which has not Matured or Expired.

Current Bill means a Bill accepted and discounted in accordance with this document which has not matured.

Debt Service Cover Ratio means, at any date, the ratio of:

(a) Adjusted EBITDA; to

(b) the aggregate amount of:

(i) Gross Interest Expense paid or payable by the Transaction Parties (whether payable in respect of the Facilities or otherwise) in respect of the 12
month period ending on that date; and

(ii) all scheduled payments of principal in respect of the 12 month period ending on that date (including any payment required in order for the Borrower
to comply with clause 5.5(a) in respect of the Bank Bill Discount Facility) paid or payable by the Transaction Parties in respect of any Financial
Indebtedness (other than Excluded Financial Indebtedness).

Discount Rate means in relation to a Funding Period:

(a) the rate (expressed as a percentage yield per annum to maturity) being the arithmetic average (rounded up to the nearest four decimal places) of the buying
rates published at or about 10.15 am on the first Business Day of the Funding Period on the Reuters Screen under the heading “BBSY” for Bills with a tenor
as nearly as possible equal to that Funding Period; or

(b) if:

(i) the rate is not displayed for a term equivalent to that period; or

(ii) the basis of the calculation of the rate is changed after the date of this document so that in the opinion of the Bank it ceases to reflect the cost of
providing the Facility,

the Base Rate will be the rate per centum per annum determined by the Bank to be the average of the buying rates quoted to the Bank by at least three
Reference Banks at or about that time on that date. The buying rates must be for bills of exchange accepted by a leading Australian bank and which have a
term equivalent to the period. If there are no buying rates, the rate will be determined by the Bank having regard to indexes or other bases which the Bank
determines to be as near as practicable to the indexes and bases used to determine the rate referred to in paragraph (a).

Disposal means a sale, lease, transfer or other disposal by any Transaction Party of any interest in:

(a) any share or stock (whether or not ordinary or preference and whether or not redeemable) or any other instrument convertible or exchangeable into or
entitling a person to acquire or subscribe for any share or stock;

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